Upon Retrospective Regularization, Employee Entitled To Benefits Other Than Salary Arrears Retrospectively Unless Specifically Barred: Allahabad HC
The Allahabad High Court has held that in cases of retrospective regularization, the employee shall be entitled to benefits such as time scale, selection pay, ACP benefits, etc. retrospectively, unless the order regularizing him specifically bars the time period mentioned therein from being counted.
It was further held that even otherwise, if retrospective regularization restores seniority, fixation of the petitioner at a lower pay scale than those of his junior, it will be violative of Article 14 of the Constitution of India.
“Even otherwise a retrospective regularization if restores seniority, then fixation of salary/ pay scale of an employee cannot be lower than that of other employee/ employees who is/ are junior to him. This if is permitted will lead to arbitrariness and discrimination and so should be hit by Article 14 of the Constitution petitioner is to be protected considering entire period of service, may be arrears of salary for the period are not paid,” held Justice Ajit Kumar.
Factual Background
Petitioner was working as Accounts Clerk with the Meerut Development Authority. The Development Authority did not regularize the petitioner w.e.f. 14.02.1991 when five persons were appointed in the general category instead of four, two persons in the SC category, and one person in the OBC category. The OBC quota was left unfilled and seats were directed towards the general category.
Admitting its error, the Authority sought to rectify it by resolution dated 29.01.2001. However, by order dated 12.09.2008, the Vice Chairman, Meerut Development Authority cancelled petitioner's regularization and consequent pay fixation and promotional pay with effect from 27.09.1991.
Challenging the order of the Vice Chairman, counsel for petitioner submitted that once the petitioner was regularized with effect from 27.09.1991, pay protection in terms of the promotional pay scale and incidental benefits as per the Assured Career Progression was the natural consequence.
It was further submitted that there was no condition in the order prohibiting calculation of benefits (such as time scale selection) for the 27.09.1991 to 29.01.2001. Lastly, it was argued that as the impugned order had adverse consequences, he ought to have been accorded an opportunity of hearing.
Counsel for the respondent submitted that the petitioner was not entitled to pecuniary benefits as the earlier order did not entitle him so.
High Court Verdict
The Court recorded a specific finding that while the petitioner was given effective appointment on 29.01.2001, the resolution did not specifically bar the time period between 27.09.1991 to 29.01.2001 from being counted for future benefits, time scale, selection pay, ACP benefits, etc. Thus, it was held that the statement in the resolution that salary benefits, etc. would not be admissible would only mean that the petitioner would not be entitled to arrears of salary as he did not work during said period due to the principle of 'no work, no pay'.
The Court held that regularization executed with retrospective effect meant that the petitioner was eligible for future pay scale and other service benefits like ACP benefits, time scale benefits and selection grade benefits.
Accordingly, the Court quashed the impugned resolution. The concerned authority was directed the Authority to deliver whatever arrears remained on account of the resolution failing which interest @12% would have to be paid, and to re-calculate pension accordingly if it was being given since the petitioner had already retired.
Case Title: Anwar Ahmad Siddqui v. State of U.P. and Others [WRIT - A No. - 50923 of 2008]